Using Google Trends to Prove a Point about Porn

In an obscenity trial, in order for a prosecutor to lock up an American citizen for making “dirty movies” or “dirty writings” or “dirty pictures,” he (or she) must convince the jury that the material violates “community standards.” Unfortunately, that tends to be easier than you may think, for jurors will often substitute their personal approval or disapproval of content for their judgment about what the community might think. And, what the community thinks in private is very different from what the community will admit in public.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

The Miller test was written in 1973 — long before the advent of the Internet. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.

A while back, I started playing with Google Trends while fighting an examining attorney’s determination that one of our clients’ trademarks was “immoral and scandalous,” and that a “substantial composite of the internet-using public” would think so. That research wound up in this brief to the examiner, and this brief to the TTAB.

Essentially, Google Trends lets you find out how often users are searching for certain terms. I compared our client’s trademark to common search terms. Read the briefs for details.

This tool proved itself useful once again in a recent obscenity trial, as reported on in the New York Times.

Judges and jurors who must decide whether sexually explicit material is obscene are asked to use a local yardstick: does the material violate community standards?

That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.(source)

By using Google Trends, Attorney Walters hopes to show the jurors that their local area might not be as conservative as they think.

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

See What’s Obscene? Google Could Have an Answer for the whole story. Google… the duct tape of the internet.

Kozinski “scandal” is a non-story

I wanted to resist writing about the Kozinski porn “scandal”. I simply saw no reason to add fuel to the fire. Feminazis, big surprise, threw a hissy fit, saying: “He is not ethically competent to hear obscenity cases.” (source)

Of course, a “real” professor, Lawrence Lessig, explains the facts simply enough that even a critical victim studies theorist can understand (but rest assured, they’ll still scream that the world is flat).

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it. (source)

In other words, the boneheads in the media and at Feminist Law Profs are purposely trying to mislead the public into believing that Kozinski was “publishing” a porn website. (much to the delight of the disgruntled litigant who started this whole mess) This wasn’t a “website,” it was a “directory.” Nevertheless, it really doesn’t matter. Kozinski had as much right to have those images on in this directory (and frankly, on a public website, if he so chose) as he had a right to have a six pack of beer in his refrigerator. They are perfectly legal. Attorney Gill Sperlien asked: “Should a judge who owns a car and operates it lawfully be disqualified from presiding over a trial where a car was used unlawfully (e.g. DUI, reckless driving, vehicular homicide)?“

Indeed, Judge Kozinski’s familiarity with internet erotic content makes him more, not less, competent as a judge in an obscenity case. He would be more familiar with the community standards, what is available as comparable material, and likely in a better position to bring a dose of reality to the trial. First Amendment attorney Gary Edinger said, “We let crazy zealot Southern Baptist born again judges preside over obscenity trials wherever they spring up. The press never suggests that those Jesus freaks are incapable of being neutral and impartial dispensers of justice.“

Professor Dave Fagundes made a great observation:

A very puritanical person who had a strong bias against anything even remotely sexually explicit would be very likely to have no pornography on their computer, but this certainly wouldn’t mean such a person was objective. If anything, a judge who has a strong stomach for all kinds of material might be better suited to evaluate whether the highly context-sensitive First Amendment standards for obscenity apply to a particular work. Very rough analogy, but wouldn’t you rather have a bibliophile evaluate the literary merit of a given novel than someone who had never read a book?

Fagundes also questioned whether the Kozinski material was accurately called “pornography.”

It’s more just crude, kind of bizarre, sexually themed humor-the kind of stuff a college sophomore might find hilarious and send to his frat buddies. So I think there’s a foundational difference between Koz’s motivations (which I think were merely to share bawdy laughs with others, however lame the jokes may have been) and the aims of the defendant in the trial (which were presumably to generate sexually explicit material to arouse whoever viewed it).

I’ve gone through most of Kozinski’s images, trying to figure out what all the fuss was about…. They are nothing more than a collection of stupid images that most of us get sent to us at one time or another by that annoying friend who cant keep his finger off the “forward” button.

For example, the press describes one of the images as “of contortionist sex.” Technically, it is, but it is accompanied by a spoof of the “for everything else there is master card” ad campaign. The “bestiality” content? That was the famous “donkey rapes man” video (shown at the bottom of this post).

And so on… In fact, if you look in my “deleted items folder,” you’ll find most of those images in there too. Most were forwarded by friends who seem to think that I would find them funny. Some are funny, most are just dumb and out-dated internet memes. I don’t bother to save them, because I know that someone else will forward it to me in a week.

The feminazis seem fixated on one image of two nude women painted as cows - whining that it is “degrading” because the women are positioned as if to say “come milk me” or “come fuck me”. This is somehow evidence that Kozinski is a misogynist.

I’m not sure that it is proper to lay our personal moralities over any of the depictions. I may be lacking in imagination, but neither “come milk me” nor “come fuck me” came to mind when I saw it. Perhaps the author of the work was trying to make a comment about how women are portrayed in the media. I don’t know what was in the author’s mind any more than I know what is in the collector’s mind. However, the thought police over at feminazi law profs, they know exactly what is in Kozinski’s mind… and they want it re-educated right now.

Here’s Kozinski’s “bestiality” video.

Should we put people in jail for this?

This from the AP via the Washington Post:

It’s the most extreme material that’s ever been put on trial. I don’t know of anything more disgusting,” said Roger Jon Diamond - Isaacs’ own defense attorney.

The case is the most visible effort of a new federal task force designed to crack down on smut in America. Isaacs, however, says his work is an extreme but constitutionally protected form of art.

“There’s no question the stuff is disgusting,” said Diamond, who has spent much of his career representing pornographers. “The question is should we throw people in jail for it?”

Personally, I think that the only people who belong in jail in this equation are those traitors to the Constitution who want to put Isaacs in prison.

Max Hardcore Convicted

Yesterday, Paul Little (a.k.a. Max Hardcore) was convicted on 10 counts of distributing obscene materials. (source) The short version: Consenting adults decided to make a movie. Consenting adults starred in the movie. Consenting adults bought the movie. Nevertheless, your government decided that someone should go to prison for it.

And yesterday, twelve of the dumbest motherfuckers in Florida bent the Constitution over and fucked it in the ass.

I don’t like Max Hardcore’s movies. You probably wouldn’t either. I have exercised my right to watch something else, but I certainly don’t mind if my neighbors want to watch his movies. That is what freedom is.

Today, you are less free because of a sleazeball administration and twelve of Florida’s most moronic citizens.

For more posts on obscenity law, click here.

A Witness to an Obscenity Trial Speaks

Honoring Our Nation’s Heroes—By Looking At Crap
By Anonymous

I’m spending Memorial Day wrestling with the First Amendment.

The Constitution lays it out perfectly clearly:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”

So what part of “Shall make no law” is confusing?

I’m spending Memorial Day looking at crap. Disgusting, stupid, un-sexy crap. Crap that, because it features penises, vaginas, and buttholes, is under indictment. That is, the people who make it and sell it are under indictment. If they lose, they will pay enormous fines, go to jail, and have their cars, houses, and 401(k)s taken by the government.

I’m spending Memorial Day discharging my duty as a witness in an obscenity trial. In a few weeks, I’ll be asked — as a witness — my opinion on various aspects of this crap, and the people who look at it.

What I’d like to say is “excuse me, this is America. All the people in these films have proven they’re over 18. All the people buying them are over 18. So for what reason could the U.S. government possibly be interested? And how could the government’s interest possibly be legal?”

Instead, I have to participate in the Miller Test game. I’ll be asked to discuss the potential literary, artistic, political or scientific value of the crap, and to judge the interest the crap’s consumers have in it—shameful? Morbid? Playful? Ironic?

America’s obsessive pursuit of censorship disgraces our great nation. The belief that some adult material is “over the line” or “blasphemous” or “sick”—and therefore outside the bounds of our glorious social experiment in free speech—is a stain on our great contribution to human history, the American constitution.

So this Memorial Day, I won’t march in a parade, wave a flag, or talk about wars won or not yet won. I’ll be honoring our nation’s past, and defending our nation’s future– by looking at crap, and looking for loopholes in disgusting laws so that the light of our transcendent Founders can shine through.

The Author of this piece shall remain anonymous

Evil Angel Obscenity Indictment Update

Those brave souls at the Department of Justice are at it again, protecting freedom and democracy pissing on the Constitution, in violation of their oath of office.

XBiz reports that John Stagliano and Evil Angel Productions are the latest targets of the Bush administration’s faith-based censorship task force and its lead toadie, Brent Ward.

Stagliano and his related companies were charged with “three counts of using a facility of interstate commerce to sell and distribute DVDs containing obscene films together with a movie trailer in violation; two counts of using a common carrier for the conveyance or delivery of DVDs containing obscene films in interstate commerce; one count of engaging in the business of selling or transferring an obscene film and a movie trailer; one count of using an interactive computer service to display an obscene movie trailer in a manner available to a person under 18 years of age; and one count seeking forfeiture of certain assets of the defendants.” (source)

The indictment reported on here apparently is for films involving squirting, anal squirting, and/or enemas. A copy is available here.

1. Belladonna- Fetish Fanatic 5
2. Milk Nymphos
3. Storm Squirters 2

I will agree that films involving squirting milk up a girl’s ass, and then watching it spray out again are on the far side of strange-world. Nevertheless, is this something that you want your government pursuing? Do you really think that your government should be spending its resources trying to put Stagliano in prison?

Who is the greater threat to us all? Stagliano or Brent Ward?

Ward is a repressed Utah fascist who came to power during the Bush administration’s push to make the entire government a faith-based initiative. After years of languishing in frustration in Utah, Ward was given a position of power at the Department of Justice — heading up the DOJ’s obscenity task force. When prosecutors laughed at him for trying to divert government resources to putting people in jail for selling “dirty movies,” he got pissed — and did his best to remove prosecutors who didn’t follow his faith-based anti-First Amendment crusade. (source). Remember the U.S. Attorneys scandal from a few months ago? At least two of the U.S. Attorneys lost their jobs because they thought that pursuing crime was more important than trying to criminalize First Amendment protected expression.

Adult obscenity prosecutions are notoriously difficult to win, since prosecutors must show that materials involving and used by consenting adults have violated local “community standards.” In the post-9/11 era, law enforcement experts have questioned whether a focus on federal obscenity cases makes sense, given the massive resources diverted to counterterrorism and the demands of other criminal priorities like gun violence, identity theft and the proliferation via the Internet of sex crimes against children.

“With everything else going on, should they really have FBI agents and prosecutors devoted to sitting around watching dirty movies?” said a senior law enforcement official who attended a national conference on adult obscenity orchestrated by the Gonzales Justice Department in October 2006. “We’re not the policymakers,” he said. “But I guarantee you won’t find any office in any major metropolitan area that would seriously consider this a priority.” (source)

Well, it looks like someone threw Ward a bone. That bone is Mr. Stagliano — but Mr. Stagliano stands in as a proxy for all of our freedom, whether we like milk enema movies or not.

I do not believe that obscenity can truly and honestly be Constitutionally prohibited. See Two Girls, One Cup - Practical Obscenity Law. Nevertheless, for as long as we have zealots serving as prosecutors, and they seek to pander to the worst people in society, there will be obscenity prosecutions.

I believe that even the worst content (as long as that content is of consenting adults) should be constitutionally protected. Nevertheless, the reality is that the social conservatives have funded this modern-day thought police, this obscenity task force that exists for one purpose — to watch dirty movies and put people in prison for making and selling them. Somewhere, right now, there is a Ned Flanders type with deep feelings of repressed homosexuality watching a film with some church-chat looking woman who spent three years in law school with her face buried in Andrea Dworkin law review articles, and the two of them are deciding that the person who made a certain movie needs to be in prison.

In the United States of America… Your tax dollars are spent on efforts to put adults in prison who filmed other consenting adults and sold the movie to other consenting adults.

So much for the land of the free.

The only “crime” that Stagliano committed was dissemination of speech that challenges the morality that Brent Ward has decided we should all live by.

If you don’t like milk-enema films, then exercise your right to not watch it. But, shouldn’t we all, as free Americans, have the right to make that decision for ourselves? Nobody forced the girls to be in the video. Nobody forced the guy to make the video. Nobody forced anyone to fork over their hard earned cash to buy the video.

That’s what freedom is. You make your own choices — for ill or for good.

The government has no right to take a hand in that decision. And the only person who belongs in jail in this equation is Brent Ward, a crusading lowlife who thinks that he should have the right to reach into my life, and your life, and punish us for exercising our fundamental rights to express ourselves any way that we damn well please.

Update Here is a link to Stagliano’s legal defense fund page.

Obscenity Scholarship

Clay Calvert and Robert Richards call for an end to the obscenity laws.

Two Girls, One Cup - Practical Obscenity Law

In honor of Valentine’s Day, in the “aint love grand” posting category, I am going to discuss obscenity risks in the specific context of the film, Two Girls, One Cup. (link). If you have not seen the video, never fear. You don’t need to in order to understand this post.

My adult entertainment clients are, understandably, often inquisitive about their potential exposure to an obscenity prosecution. When they ask me “do I need to worry about an obscenity prosecution?” The “lawyer’s answer” is as follows:

Abercrombie Obscenity Flap

Virginia is not my least favorite state. It doesn’t even make the top five. Imagine that, home of Liberty University, Jerry Falwell, and Regent University and it… hmmm, okay, it makes the top five - especially after last week’s Abercrombie flap.

Before we get into talking about that, lets take a look at the Virginia state flag:

See that? That isn’t side-boob, that’s full on wardrobe malfunction nipple. Underneath in latin, “Thus always to Tyrants.” This is what Brutus said when he killed Caesar and what John Wilkes Booth said after he killed President Lincoln.

I just want to make sure I’m right here… everyone check with me. Is this really boobie?

Awright, got your irony gun set to “kill?” Good, come with me to Virginia Beach…

Let’s get one thing straight, I despise Abercrombie & Fitch almost as much as I despise Kansas. If hitler were alive today, I believe that the SS would be swathed in Abercrombie from head to toe. It is “Gap for the Master Race.” See here and here.

As far as their scantily clad ad campaigns? Just stupid. I’m not offended by them, but if I want porn, I can find it. Shock advertising is just silly. Nevertheless, we live in a free country. I exercise my right to refuse to shop at Abercrombie every day. Obviously, I am in the minority and my point of view is losing in the marketplace of ideas.

We live in a free country. That is the price I pay.

The Virginia Beach police didn’t get that “free country memo.”

Some parents in Virginia Beach shrieked “what about the children?” when Abercrombie revealed its latest ad campaign - more of the same faux-sepia semi-nude Caucasians.

One of the posters showed three shirtless young men, one with his upper buttocks revealed. The second one revealed a woman’s breast — with all but the nipples. (source)

The police showed up at the store, issued a warning, and when the warning was not heeded, they handed the manager a citation and confiscated the posters as “obscene material.”

One problem, even if they were legally obscene, police officers don’t get to make that decision.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Was the police response to the store an overreaction? Yes, according to legal experts. Though local laws can vary, courts require that the image show sexual activity or a “lewd display” of genitals, says Lawrence Walters, an Orlando, Fla., lawyer and First Amendment specialist.

“There is not a chance any jury in America would find the photo obscene under these standards,” he said. (source)

My axe to grind du jour is the fact that the officers on duty decided that it was their prerogative to apply the Miller test, circumvent the courts, and engage in unlawful prior restraint. Issuing the citation was foolish. However, it was at least proper procedure. Seizing First Amendment protected materials? That was not just foolish, but down right scary.

Fortunately, the amount of ridicule heaped upon Virginia Beach for this foolishness resulted in an immediate reversal of their position. The charges have been dropped.

Okay, Virginia is no longer in the top five.

Speaking about abortion is “Obscene”

This just in from the how did I miss this before? department:

Cnet news reports on the recently-deceased Henry Hyde’s efforts to criminalize speech pertaining to abortion.

Make that successful efforts.

Read it for yourself. 18 U.S.C. § 1462 provides: